Sutherland Institute filed an amicus curiae brief Monday with the 10th Circuit Court of Appeals in the state’s appeal of Kitchen v. Herbert – the case in which the judge struck down Utah’s Amendment 3, briefly allowing same-sex marriages to be performed.

Judge Robert Shelby wrongly “characterized the ‘goal’ of Utah’s marriage amendment as ‘imposition of inequality’ as if legislators had gathered in a brainstorming session to determine how to harm the chances of same-sex couples, and came up with a thing called marriage to which these couples could be intentionally excluded,” the brief says.

Marriage and family are “pre-political institutions,” it says. “Given that marriage and family are pre-political and not mere instruments of state policy, they are fundamental to a system of ordered liberty …”

“All of this is not to say the state has no role to play in regards to marriage and the family. The state can, and ought to, provide a legal structure for the family to be recognized and it can protect the integrity of that structure.”